Laird and Witt on Inventing the War Crime

Jessica Laird and John Fabian Witt, respectively, a student and professor at the Yale Law School, have posted Inventing the War Crime: An Internal Theory, which is forthcoming in the Virginia Journal of International Law 59 (2019):

Ever since the war crime became a central concept in public international law during the war crimes trials at Nuremberg, international lawyers have sought to establish deep historical roots for the practice of prosecuting war crimes. But on close examination, the supposed historical precedents from long ago collapse — and for an important reason. The war crime is a distinctively modern and contingent mechanism for enforcing the laws of armed conflict. This Article offers an account of how and why the war crime arose in the nineteenth and twentieth centuries, one that locates the advent of the modern concept in a set of procedural and jurisdictional developments distinctive to the modern era. A nineteenth-century configuration of legal concepts and state institutions pressed a new idea for international law out of the fissures of the international state system. For reasons rooted in the history of warfare and in the distinctive structure of the United States Constitution, that configuration arose most starkly in the United States, where Civil War jurists coined the phrase “war crime” and cemented the modern concept to which it is attached.